| Md. | Jun 1, 1864
delivered the opinion of this Court:
The appeal in this case was taken from the ruling of the Circuit Court for Wasington County, in admitting the plaintiff’s evidence contained in the defendant’s first and second exceptions, and rejecting the evidence mentioned in his third and fourth exceptions; also in granting the plaintiff’s prayer; and rejecting the defendant’s second, fifth, sixth, seventh and ninth prayers, referred to, in the fifth exception.
The points involved in the first and second exceptions, may he considered together, as both depend upon the question, whether the declarations of the appellant Smith to Amon Wilson, out of the presence of John Folk, the other appellant, and not communicated to him, could he offered to bind Folk. The appellants rely on 2nd Greenleaf on Ev., sec. 484, and Owings vs. Low, 7 G. & J., 129, to sustain this proposition; and it may be conceded, as stated in tbe case referred to, “that the admission of one defendant-
In addition to the declarations of Smith, stated in the second exception, the witness testified to, facts within his own knowledge, which were clearly admissible, and the objection being general, it contravened the rule, that where any of the evidence offered is admissible and the objection goes to the whole, the objection is untenable.' The evidence in these exceptions was not offered to establish a partnership, but to show the course of dealing, and the incidents con^nected with the purposes of the partnership named in the advertisement. This view is recognized by the Circuit Court, as will be seen by reference to the qualification of the Court at the conclusion of the second exception. The propriety of admitting this evidence is also sustained by the fact, that the receipts given for the wheat were in the partnership name, were found in the possession of the appellant Folk, and, upon notice, were produced by him and given in evidence before the examination of the witness Wilson.
We therefore think the Circuit Court properly admitted the evidence contained in the first and second exceptions.
The evidence contained in the third exception was inadmissible. The course of dealing of the individuals named in this exception, could in no manner affect the appellee. It is ' but negative testimony, and there is nothing to show that the appellee had any knowledge of their deal
The evidence mentioned in the fourth exception was also inadmissible. The appellee had no access to the books of the partnership, was not bound by any entries made in them. They were res inter alios acta, and if any deduction can be drawn from them, it was to establish tho joint responsibility of tbe appellants as partners, evidenced by their settlement embracing the receipts above referred to. In reference to tbe prayers in the fifth exception, we have carefully considered them. We see no legal objection to tbe prayer of the appellee.
In our opinion the facts submitted to the jury, if found by them, were legal evidence from which they might infer, not only the partnership, but also that the milling business conducted by the appellants, included the buying of grain to be ground at the appellant’s mill. And we also think that the Circuit Court correctly instructed the jury, that though the appellee and Atnon Wilson took the individual notes of Smith for the wheat mentioned in the prayer, the firm was not exempt from liability therefor, unless there was an agreement and understanding to that effect. See 2 G. & J., 508. 8 Gill, 176. 7 Johns. Ch. Rep., 313.
The appellant’s second prayer could not have been granted. The segregation of the two instances mentioned in the prayer, and asking the instruction thereon, excluded from the jury other evidence which may have induced the Wilsons to believe the appellants were partners, and was therefore calculated to mislead the jury. The point embraced in the fifth prayer, that the notes taken by the Wilsons are “evidence as to who were the parties vendor and vendee, and could not be added to, contradicted or varied by parol evidence,” could not legally have been sanctioned by the Court, and was properly refused. The rule relied on has no application to this ease.
The sixth and seventh prayers were objectionable, because they both omit the important qualification, that it must appear affirmatively that there was an agreement and understanding on the part of the Wilsons in taking the individual notes of Smith, that Folk should be discharged from liability in the purchase of the wheat, — the necessity of which we have recognized in treating of the appellee’s prayer. The only difference between the ninth prayer and the sixth and seventh, is found in the proposition, that if the Wilsons received the individual negotiable notes of Smith, and gave up the receipts signed Folk & Smith, then the verdict of the jury must be for the defendant.
This-prayer was properly rejected in view of the evidence. It appearing that Smith had become insolvent, that these notes were in fact in the possession of the appellee, and produced at the trial, and not relied on as the cause of action, but given in evidence merely to show the balance due on the sale of the wheat; therefore the appellants could suffer no injury from their negotiable character.
Having thus sanctioned the ruling of the Circuit Court in regard to all the exceptions, the judgment must be affirmed.
Judgment affirmed.